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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

03 MAY 2013

R (on the application of ES) v London Borough of Barking and Dagenham [2013] EWHC 691 (Admin); (2013) PLLR 049

Community Care - Accommodation - Children Act 1989 - Assessment

The Defendant Council ought to have conducted a re-assessment of the Claimant's son's needs once he and his mother's circumstances changed and they had been made homeless.

27 March 2013

Administrative Court

Robin Purchas QC

(1)        The Claimant, an Albanian national, sought judicial review of the Defendant's failure to assess her son's needs so as to provide accommodation and support under section 17 of the Children Act 1989.

(2)        The Claimant had arrived in the UK in June 2009, and her asylum and humanitarian protection claims were rejected in September 2009. The Defendant determined that it was unable to provide support under section 17 of the Children Act.

(3)        Both parties accepted, by the time of the hearing, that the Defendant's solicitor had been wrong: the Defendant continued to be under a duty to take reasonable steps to assess the Claimant's child's needs, particularly once his circumstances had changed on 5th November 2012 (in so far as the Claimant and her child were to become street homeless).

(4)        HELD: The Defendant's duty was ‘to take reasonable steps to identify the extent to which' the child was a child in need. It was clear that the Defendant's solicitor had interpreted the law in such a way that it had been concluded that the Defendant was precluded from exercising its section 17 powers, and thus there was little point in carrying out a reassessment. There was nothing to indicate that the situation had, at any point, been looked at in any other way.

(5)        The question to be answered addressed whether the Defendant's duty to take reasonable steps to assess the extent of the needs of the child was compatible with a refusal to reassess or update the initial assessment that had been undertaken. That the Claimant and her child had been provided with a bed for the night following their being made street homeless did not exonerate the Defendant it's a duty to take reasonable steps to assess or reassess the Claimant's son's needs. This was particularly the case once the circumstances had been drawn to the Defendant's attention on 5 November 2012. The refusal to reassess the child's needs, despite these changed circumstances, was held not to be consistent with the duty to take reasonable steps to identify the extent to which the child was in need at that particular time. At the very least, the Defendant should have assessed what accommodation would or could have been provided.

(6)        The Court declined to determine what the outcome of the assessment would have been, and whether support and accommodation would have been provided. It was held to be sufficient that it was not possible to rule out the finding that the child was in need of support and accommodation.

(7)        For the period between 5 November 2012 and 16 November 2012 (when accommodation was eventually provided), the Defendant was found to have acted unlawfully in failing to take steps to reassess the Claimant's child's needs. In light of a lack of up-to-date information, the Court considered that it was just that the Defendant should make an up-to-date assessment of the child's needs, and an interim order for accommodation and support should continue until that reassessment had been completed.

Claim succeeded

Key paragraphs

[72] - Change circumstances.

[75] - Reassess.

[77] - Not compliant with duty.

[79] - Not determine assessment outcome.

[82] - Unlawful.

[87] - Up-to-date assessment.

[88] - Conclusion.

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